Citation Nr: 0931291
Decision Date: 08/20/09 Archive Date: 08/27/09
DOCKET NO. 06-25 505 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Lincoln,
Nebraska
THE ISSUES
1. Entitlement to service connection for hypothyroidism.
2. Entitlement to service connection for mental stress.
3. Entitlement to service connection for varicose veins.
REPRESENTATION
Appellant represented by: Calvin Hansen, Attorney at Law
ATTORNEY FOR THE BOARD
Amy R. Grasman, Associate Counsel
INTRODUCTION
The Veteran served on active duty from October 1973 to March
1974. The Veteran served in the Air Force Reserves from
November 1986 to November 1987 and from March 1989 to January
1997. The Veteran served in the Army Reserves from November
1987 to March 1989.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 2005 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Lincoln, Nebraska.
This appeal was remanded by the Board in August 2008 for
additional development.
The issue of service connection for varicose veins is
addressed in the REMAND portion of the decision below and is
REMANDED to the Department of Veterans Affairs Regional
Office.
FINDINGS OF FACT
1. The Veteran has been notified of the evidence necessary to
substantiate her claim, and all relevant evidence necessary
for an equitable disposition of this appeal has been
obtained.
2. The competent medical evidence of record does not show
that hypothyroidism was incurred in, aggravated by or related
to service.
4. The competent medical evidence of record does not show
that mental stress, including generalized anxiety disorder
with panic attacks, was incurred in, aggravated by or related
to service.
CONCLUSIONS OF LAW
1. Hypothyroidism was not incurred in or aggravated by
service. 38 U.S.C.A. § 1110, (West 2002); 38 C.F.R. § 3.303
(2008).
2. A disability manifested by mental stress, including
generalized anxiety disorder with panic attacks, was not
incurred in or aggravated by service. 38 U.S.C.A. § 1110,
(West 2002); 38 C.F.R. § 3.303 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008);
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2008).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and her representative, if any, of any information,
and any medical or lay evidence, that is necessary to
substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002);
38 C.F.R. § 3.159(b) (2008); Quartuccio v. Principi, 16 Vet.
App. 183 (2002). Proper notice from VA must inform the
claimant of any information and evidence not of record (1)
that is necessary to substantiate the claim; (2) that VA will
seek to provide; and (3) that the claimant is expected to
provide. 38 C.F.R. § 3.159(b)(1). This notice must be
provided prior to an initial unfavorable decision on a claim
by the agency of original jurisdiction (AOJ). Mayfield v.
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v.
Principi, 18 Vet. App. 112 (2004).
Here, the Veteran was sent a VCAA letter in November 2004
regarding service connection for stress and hypothyroidism.
A letter was sent in March 2006 setting forth the provisions
as provided in Dingess v. Nicholson, 19 Vet. App. 473 (2006).
Another VCAA letter with Dingess notice was sent to the
Veteran in August 2008. These letters addressed the VCAA
notice elements and informed the appellant of what evidence
was required to substantiate the claims and of the
appellant's and VA's respective duties for obtaining
evidence. The appellant was also asked to submit evidence
and/or information in her possession to the AOJ.
Although the VCAA duty to notify was satisfied subsequent to
the initial AOJ decision, the Board finds that this error was
not prejudicial to the appellant because the actions taken by
VA after providing the notice have essentially cured the
error in the timing of notice. Not only has the appellant
been afforded a meaningful opportunity to participate
effectively in the processing of her claim and given ample
time to respond, but the AOJ also readjudicated the case by
way of supplemental statements of the case in April and June
2009 issued after the notice was provided. See Mayfield v.
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was
not provided prior to the AOJ's initial adjudication, this
timing problem can be cured by the Board remanding for the
issuance of a VCAA notice followed by readjudication of the
claim by the AOJ) see also Prickett v. Nicholson, 20 Vet.
App. 370, 376 (2006) (the issuance of a fully compliant VCAA
notification followed by readjudication of the claim, such as
an SOC or SSOC, is sufficient to cure a timing defect).
Additionally any error regarding the Dingess notice was
harmless given that service connection is being denied, and
hence no rating or effective date will be assigned with
respect to the claimed conditions. For these reasons, it is
not prejudicial to the appellant for the Board to proceed to
finally decide this appeal as the timing error did not affect
the essential fairness of the adjudication.
VA also has a duty to assist the veteran in the development
of the claim. This duty includes assisting the veteran in
the procurement of service treatment records, pertinent
medical records and providing an examination when necessary.
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
In determining whether the duty to assist requires that a VA
medical examination be provided or medical opinion obtained
with respect to a veteran's claim for benefits, there are
four factors for consideration. These four factors are:
(1) whether there is competent evidence of a current
disability or persistent or recurrent symptoms of a
disability; (2) whether there is evidence establishing that
an event, injury, or disease occurred in service, or evidence
establishing certain diseases manifesting during an
applicable presumption period; (3) whether there is an
indication that the disability or symptoms may be associated
with the veteran's service or with another service-connected
disability; and (4) whether there otherwise is sufficient
competent medical evidence of record to make a decision on
the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4);
McLendon v. Nicholson, 20 Vet. App. 79 (2006).
In this case, the service medical records do not show a
diagnosis of or treatment for hypothyroidism or chronic
mental stress during active service. In view of the
objective evidence of record which was negative for these
disabilities in service, the Board finds the Veteran's
current assertions alone in the face of this objective
evidence not credible, and thus do not require VA to provide
an examination. See Caluza v. Brown, 7 Vet. App. 498, 511
(1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (in determining
whether lay evidence is satisfactory the Board may properly
consider internal consistency, facial plausibility, and
consistency with other evidence submitted on behalf of the
veteran). The Court has held, in circumstances similar to
this, where the supporting evidence of record consists only
of a lay statement, that VA is not obligated, pursuant to
5103A(d), to provide a veteran with a medical nexus opinion.
See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (a
medical opinion was not warranted when there was no
reasonable possibility that such an opinion could
substantiate the veteran's claim because there was no
evidence, other than a lay assertion, that reflected an
injury or disease in service that may be associated with the
current symptoms).
The Board finds that all necessary development has been
accomplished, and therefore appellate review may proceed
without prejudice to the appellant. See Bernard v. Brown, 4
Vet. App. 384 (1993). The RO has obtained service treatment
records, DD Form 214, private medical records and VA medical
records. Significantly, neither the appellant nor her
representative has identified, and the record does not
otherwise indicate, any additional existing evidence that is
necessary for a fair adjudication of the claim that has not
been obtained. Hence, no further notice or assistance to the
appellant is required to fulfill VA's duty to assist the
appellant in the development of the claim. Smith v. Gober,
14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir.
2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see
also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Service connection may be granted for a disability resulting
from a disease or injury incurred in or aggravated by
service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R.
§ 3.303(a) (2008). This may be shown by affirmative evidence
showing inception or aggravation during service or through
statutory presumptions. Id.
To establish direct service connection for a claimed
disorder, there must be (1) medical evidence of current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service occurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the current
disability. See Hickson v. West, 12 Vet. App. 247, 253
(1999); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir.
1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992).
For the showing of chronic disease in service there is
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time. See 38 C.F.R. § 3.303(b)
(2008). If chronicity in service is not established, a
showing of continuity of symptoms after discharge is required
to support the claim. Id.
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (2008).
The medical evidence of record shows that a diagnosis of
hypothyroidism was made in July 1996. An August 2006 letter
from a private physician reveals that the Veteran had a
history of hypothyroidism and generalized anxiety disorder
with panic attacks.
The Board has reviewed the service treatment records and
there was no treatment for or diagnosis of hypothyroidism in
service. There was some indication that the Veteran had
problems controlling her weight and was under stress due to
her weight problems. During the physical examinations, the
Veteran did not report that she had thyroid issues, nervous
trouble or excessive worry. The physical examinations during
active service and during her reserve service were negative
for hypothyroidism or psychiatric disorders.
Based on the foregoing, the Board finds that service
connection for hypothyroidism and mental stress is not
warranted. There is no indication that hypothyroidism or
mental stress manifested in the period of active service or
is related to service. Hypothyroidism was diagnosed in July
1996, several years after the Veteran's active duty period.
The was no indication of chronic mental stress at separation
from service and no continuity of symptoms between separation
and the August 2006 letter from the private physician. This
lapse in time weighs against the Veteran's claim.
The Board notes that there is also no indication in the
reserve service records that an incident during active duty
for training caused or was related to her claimed
disabilities. In spite of treatment for both disabilities
after service, there is no indication from the treating
physicians that hypothyroidism or mental stress was related
to service. The record is devoid of any objective medical
evidence relating hypothyroidism or mental stress to service.
No doctor has ever opined that hypothyroidism or mental
stress is related to any remote incident in service. Without
competent medical evidence linking the Veteran's disabilities
to service, service connection is not warranted.
The Board has considered the Veteran's contention that a
relationship exists between her hypothyroidism and/or mental
stress and service. However, as a layman, without the
appropriate medical training and expertise, she is not
competent to provide a probative opinion on a medical matter
such as etiology. While a layman such as the Veteran can
certainly attest to her in-service experiences and current
symptoms, she is not competent to provide an opinion linking
a disability to service. See Bostain v. West, 11 Vet. App.
124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App.
492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186
(1997) ("a layperson is generally not capable of opining on
matters requiring medical knowledge").
In sum, the evidence of record does not show a nexus between
hypothyroidism or mental stress, including generalized
anxiety disorder with panic attacks, and service. As the
preponderance of the evidence is against the Veteran's
claims, the benefit-of-the-doubt rule does not apply, and the
Veteran's claim for service connection for hypothyroidism and
mental stress must be denied. See 38 U.S.C.A §5107;
38 C.F.R. § 3.102.
ORDER
Service connection for hypothyroidism is denied.
Service connection for mental stress is denied.
REMAND
In July 1989 medical treatment records, the Veteran was
diagnosed with varicose veins. An August 2006 letter from a
private physician reveals that the Veteran had a history of
varicose veins.
In determining whether the duty to assist requires that a VA
medical examination be provided or medical opinion obtained
with respect to a veteran's claim for benefits, there are
four factors for consideration. These four factors are:
(1) whether there is competent evidence of a current
disability or persistent or recurrent symptoms of a
disability; (2) whether there is evidence establishing that
an event, injury, or disease occurred in service, or evidence
establishing certain diseases manifesting during an
applicable presumption period; (3) whether there is an
indication that the disability or symptoms may be associated
with the veteran's service or with another service-connected
disability; and (4) whether there otherwise is sufficient
competent medical evidence of record to make a decision on
the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4).
With respect to the third factor above, the Court of Appeals
for Veterans Claims has stated that this element establishes
a low threshold and requires only that the evidence
"indicates" that there "may" be a nexus between the
current disability or symptoms and the veteran's service.
The types of evidence that "indicate" that a current
disability "may be associated" with military service
include, but are not limited to, medical evidence that
suggests a nexus but is too equivocal or lacking in
specificity to support a decision on the merits, or credible
evidence of continuity of symptomatology such as pain or
other symptoms capable of lay observation. McLendon v.
Nicholson, 20 Vet. App. 79 (2006).
In this case, the August 2006 treatment records show that the
Veteran had varicose veins. The treating physician noted
that the varicose veins were probably weight related and may
have been exacerbated by a history of prolonged standing and
squatting in service.
The Board finds that the August 2006 notation meets the
threshold in McLendon and is evidence that there may be a
nexus between the current varicose vein disability and the
Veteran's service. As such, a VA examination is warranted to
determine the etiology of the varicose veins.
Accordingly, the case is REMANDED for the following action:
1. The Veteran should be scheduled for a
VA examination with the appropriate
medical specialist to determine the
etiology of the current varicose vein
disability. The claims file must be made
available to and reviewed by the examiner
in conjunction with the examination, and
the examination reports should reflect
that such a review was made. All
pertinent symptomatology and findings
should be reported in detail. Any
indicated diagnostic tests and studies
should be accomplished. The examiner
should state whether the Veteran's
disability is more likely than not (i.e.,
probability greater than 50 percent), at
least as likely as not (i.e., probability
of 50 percent), or less likely than not
(i.e., probability less than 50 percent),
causally or etiologically related to or
aggravated by active service.
2. The RO should then readjudicate the
issue on appeal. If the determination
remains unfavorable to the Veteran, the RO
should issue a supplemental statement of
the case that contains notice of all
relevant actions taken, including a
summary of the evidence and applicable law
and regulations considered pertinent to
the issue. An appropriate period of time
should be allowed for response by the
Veteran and her representative.
Thereafter, the case should be returned to
the Board for further appellate
consideration, if in order.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs